Citation Nr: 9903912
Decision Date: 02/11/99 Archive Date: 02/17/99
DOCKET NO. 96-14 737 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
osteomyelitis and, if so, whether a grant of service
connection is warranted.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
osteoarthritis and, if so, whether a grant of service
connection is warranted.
REPRESENTATION
Appellant represented by: New Jersey Department of
Military and Veterans' Affairs
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
M. E. Larkin, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1943 to September
1944.
This matter was initially before the Board of Veterans'
Appeals (Board) on appeal from an October 1995 rating action
of the Newark, New Jersey Regional Office (RO) of the
Department of Veterans Affairs (VA). The veteran submitted a
notice of disagreement (NOD) in December 1995 and the RO
issued a statement of the case (SOC) in February 1996. The
veteran's substantive appeal was received in March 1996.
When the Board initially reviewed the case in April 1997, it
was noted that a June 1993 rating action denying service
connection for osteomyelitis and osteoarthritis was final.
In the October 1995 rating action on appeal, however, the RO,
without explaining what the new and material evidence was,
considered the veteran's claims and denied service connection
on the merits. The case was remanded in April 1997 in order
for the RO to determine whether or not the evidence presented
was new and material.
In an October 1997 supplemental statement of the case the RO
determined that there was new and material evidence to reopen
the claims but denied the claims on the merits.
In March 1998, the veteran testified at a personal hearing at
the RO. A transcript of that hearing is associated with the
claims folder.
The Board again reviewed the case in October 1998 and
determined that it was necessary to obtain an opinion from a
medical expert with the Veterans Health Administration (VHA).
That opinion was received in October 1998. The veteran and
his representative have been provided with a copy of that
opinion and afforded an opportunity to respond thereto.
A previously denied claim may not be reopened in the absence
of new and material evidence. The Board is required to
include in its decisions "a written statement of [its]
findings and conclusions, and the reasons or bases for those
findings and conclusions, on all material issues of fact and
law presented on record." Therefore, the new and material
evidence requirement is a legal issue which the Board has a
duty to address, regardless of the RO's actions. Barnett v.
Brown, 8 Vet. App. 1, 4 (1995). Thus, the Board will first
determine whether the veteran has submitted new and material
evidence on his claims of service connection; and if
appropriate, then consider the merits of those claim.
FINDINGS OF FACT
1. By a June 1993 decision, the RO denied the veteran's
original claims of service connection for osteomyelitis and
osteoarthritis. That decision was not appealed in a timely
manner and it is final.
2. New evidence which bears directly or substantially on the
specific matter and which is so significant that it must be
considered to fairly decide the claims has been associated
with the claims file since the last RO decision.
3. No medical evidence has been submitted to show that the
veteran is presently suffering from osteomyelitis.
4. The veteran is suffering from osteoarthritis which was
due to military service.
CONCLUSIONS OF LAW
1. New and material evidence to reopen claims of service
connection for osteomyelitis and osteoarthritis has been
presented after the final June 1993 rating action.
38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104,
3.156 (1998).
2. Service connection is not warranted for osteomyelitis.
38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1998);
38 C.F.R. §§ 3.102, 3.303, 3.310 (1998).
3. Osteoarthritis is due to disease or injury which was
incurred in service. 38 U.S.C.A. §§ 1110, 5107, 7104 (West
1991 & Supp. 1998); 38 C.F.R. §§ 3.102, 3.303 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In a June 1993 rating action, the RO denied the veteran's
original claims of service connection for osteomyelitis and
osteoarthritis. At that time, the RO considered service
medical records, medical reports and a statement from the
veteran's treating physician. Based on the evidence then of
record, the RO concluded that the claimed conditions has not
been shown in service, or within one year of separation, nor
were they related to the service-connected amyotrophic
lateral sclerosis (ALS). That decision was not appealed by
the veteran and is final.
A final decision of the RO may not "thereafter be reopened
or allowed, except as may otherwise be provided by
regulations not inconsistent with" Title 38 of the United
States Code. 38 U.S.C.A. § 7105(c). The exception to these
rules states that "[i]f new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review
the former disposition of the claim. 38 U.S.C.A. §§ 5108,
7104(b). Therefore, once a RO decision becomes final, the
Board does not have jurisdiction to consider the previously
adjudicated claim unless new and material evidence is
presented, and before the Board may reopen such a claim, it
must so find. See Barnett, supra.
38 C.F.R. § 3.156(a) (1998) provides that "new and material
evidence" is evidence not previously submitted which bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. In deciding
whether the test used by the United States Court of Veterans
Appeals (Court) in determining "materiality" of evidence
was consistent with the regulatory definition of "material
evidence," the U.S. Court of Appeals for the Federal Circuit
provided for a reopening standard which calls for judgments
as to whether new evidence bears directly or substantially on
the specific matter and is so significant that it must be
considered to fairly decide the merits of the claim (emphasis
added). Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
The Board must perform a two-step analysis when the veteran
seeks to reopen a claim based on new evidence. First, the
Board must determine whether the evidence is "new and
material." Second, if the Board determines that the
claimant has produced new and material evidence, the claim is
reopened and the Board must evaluate the merits of the
veteran's claim in light of all the evidence, both old and
new. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The
Board is required to review all of the evidence submitted by
an appellant since the last final denial of a claim on any
basis, to include decisions by the RO or the Board which had
refused, after having considered newly presented evidence, to
reopen a previously disallowed claim because of a lack of new
and material evidence. Evans v. Brown, 9 Vet. App. 273
(1996).
Probative evidence must tend to prove the merits of the claim
as to each essential element that was a specified basis for
the last final disallowance of the claim. In determining
whether evidence is probative (that is, whether it supplies
evidence the absence of which was a specified basis for the
last disallowance), the specified bases, as discernible from
the last decision, for disallowance must be considered. See
Evans, supra.
Using these guidelines, the Board has reviewed the additional
evidence which has been associated with the claims folder
since the June 1993 RO decision. The recently submitted
evidence includes statements from a private physician, the
report of a VA examination, hearing testimony provided by
veteran and the opinion of a medical expert within VHA. In a
March 1995 statement, the veteran's private physician noted
that the veteran had been incorrectly diagnosed with ALS
during service. The physician offered his opinion that the
veteran suffered chronic thoracic and low back syndrome which
"apparently ha[d] been caused by a secondary accelerated
osteoarthritis resulting from the osteomyelitis he had
sustained in the Navy" The VHA opinion included that
expert's comment that there was evidence the veteran may have
suffered osteomyelitis of the spine after service and it is
as likely as not that currently demonstrated osteoarthritis
of the spine is related to service.
The recently submitted evidence, particularly the
aforementioned medical opinions, is new and material in that
it is relevant and probative of the reason for the previous
denial; i.e., lack of evidence of the claimed conditions
during service. These opinions are significant in that they
relate the onset of the claimed conditions to service. Thus,
the veteran's claims of entitlement to service connection for
osteomyelitis and osteoarthritis are reopened. It is
therefore necessary to examine this matter with consideration
of the old and new evidence in order to determine if
entitlement to service connection is warranted.
In general, service connection may be established for a
disability resulting from an injury suffered or disease
contracted in the line of duty, or for aggravation of a pre-
existing injury or disease in the line of duty. 38 U.S.C.A.
§ 1110. Regulations also provide that service connection may
be granted for a disability diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that the disability is due to disease or injury
which was incurred in or aggravated by service. 38 C.F.R.
§§ 3.102, 3.303(d). Such a determination requires a finding
of a current disability which is related to an injury or
disease incurred in service. Rabideau v. Derwinski, 2 Vet.
App. 141 (1992). In addition service connection is warranted
for disability which is proximately due to or the result of a
service-connected disorder. 38 C.F.R. § 3.310.
As noted in the June 1993 rating decision, the veteran's
service medical records include a diagnosis of ALS, but are
negative for diagnoses of osteomyelitis or osteoarthritis.
(The service medical records do show complaints of backache
and that after observation it was concluded that the veteran
had ALS.) Medical opinions associated with record include
the March 1995 statement from the veteran's private physician
who noted that veteran was incorrectly diagnosed as having
ALS and had been plagued with chronic disability and low back
problems since service. In a January 1997 statement, that
same physician noted that in-service examinations yielded
significant neurological and orthopedic findings which, while
clearly not due to ALS, were "probably" due to a
considerable trauma to the vertebral spine. The physician
concluded by stating that the in-service findings "had to be
the result of a violent trauma which, with the passage of
time, contributed to the considerable disc and vertebral
damage now evidence by clinical, x-ray and MRI findings."
A June 1981 hospital summary report included a diagnosis of
osteomyelitis, T10, 11, and L2. The veteran had presented
with complaints of severe back pain and abdominal pain,
associated with fever. He gave a history of a fall two
months prior to admission.
After completion of the development requested on remand, the
Board determined that additional inquiry concerning the
medical question central to the case was required prior to
appellate disposition. The Board's request for an opinion
was sent to the Chief, Rheumatology Section of a VA Medical
Center.
In an October 1998 memorandum, the medical expert reviewed
the record and commented on pertinent information located
therein. The physician noted that, in service, the veteran
had developed pain in his back and difficulty using his left
arm; however, there was no record of antecedent trauma to the
back. Physical examination had revealed atrophy of the left
rhomboid and sacrospinalis muscles, and fasciculations of the
muscles. The veteran was diagnosed as having a neurological
illness, namely ALS, and discharged from service. The report
of a January 1947 VA examination noted complete resolution of
the neurologic condition. Subsequent to that time, the
veteran complained of, and sought treatment for, back
discomfort. The first x-ray studies were dated in 1979;
showing osteoarthritis of the cervical spine. The veteran's
history of hospitalization in 1981, following a "hard fall"
was noted, including a presumptive diagnosis of osteomyelitis
of the spine. The most recent medical evidence was reviewed
and considered significant for decreased spinal mobility,
degenerative disc disease, osteoarthritis of the facet joints
and mild spinal stenosis.
In response to specific questions from the Board, the medical
expert commented that "the [veteran] clearly has widespread
osteoarthritis of the spine (cervical, thoracic and
lumbar)....It is quite possible that the illness for which the
[veteran] was hospitalized in 1981 represented osteomyelitis
of the spine. However, there is no reason to believe that
the [veteran] currently suffers from this condition."
As to the likelihood that any demonstrated osteomyelitis or
osteoarthritis was related to service, the medical expert
stated that the veteran's presenting illness in 1944 was
likely a neurologic disorder, although "clearly" not ALS.
The expert considered it "most unlikely" that trauma could
account for that clinical picture; however, it was further
noted that the veteran had complained of back pain from the
outset and sought medical treatment for the same since
service.
In the expert's opinion, "[i]t is conceivable that the
[veteran] had two separate problems, one being a neuropathy
that resolved spontaneously and the other which caused his
persistent back discomfort." After noting that the lack of
x-ray reports made it impossible to document back trauma and
its sequelae, the examiner opined that "it is as likely as
not that [the veteran] sustained some injury to his back
while in service which caused him to have persistent back
pain over the succeeding years and is the etiology of the
osteoarthritis that is now documented."
Regarding the osteoarthritis, both the VHA medical expert and
the veteran's private physician relate the onset of the
condition to complaints in service. Although the physicians
are not in agreement as to whether traumatic injury was the
cause of the condition, they are consistent in relating the
currently demonstrated osteoarthritis to service. As noted
by the private physician, physical examination during service
yielded "significant" orthopedic and neurological findings.
As such, the Board finds that the weight of the evidence
favors a grant of service connection for osteoarthritis.
Regarding the osteomyelitis, the medical expert who reviewed
the file noted that it was "possible" that the veteran
suffered osteomyelitis in 1981; however, he did not presently
suffer from that condition. The veteran's private physician
offered an opinion in March 1995 that the veteran's back
condition was related to osteomyelitis sustained in service;
however, the opinion did not include any reference to the
information relied upon in forming that opinion. No clinical
foundation for that opinion was provided. Nor did that
statement include an opinion as to whether the veteran
presently suffered osteomyelitis. The Board gives greater
weight to the opinion offered by the physician within VHA, in
part, because that opinion comes only after a review of the
entire record as requested by the Board and it refers to
specific events and medical history to support the analysis.
The Board concludes that the preponderance of the medical
evidence is against a conclusion that the veteran currently
has osteomyelitis.
Although the veteran contends that service connection for
osteomyelitis is warranted, as a lay person, he is not
competent to give a medical opinion on the diagnosis or
etiology of a condition. Espiritu v. Derwinski, 2 Vet. App.
492 (1992).
Following receipt of the VHA opinion, no additional competent
evidence has been submitted regarding the questions of
medical diagnosis and causation. Absent proof that the
veteran currently suffers from osteomyelitis, his claim must
fail. See Rabideau, supra.
ORDER
The veteran's claim of entitlement to service connection for
osteomyelitis is reopened and denied.
The veteran's claim of entitlement to service connection for
osteoarthritis is reopened and granted.
E. M. KRENZER
Member, Board of Veterans' Appeals
Department of Veterans Affairs